Yearly Archives: 2012

On Dec. 30, the New York Times editorial page featured what has to qualify as one of the most intellectually vapid columns of the year. And considering the source, that’s saying something!

Louis Michael Seidman says we simply must do away with our blind obedience to the Constitution!

As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Huh? Obedience to the Constitution? Really?

Since when?

The federal government has utterly ignored constitutional limits for the last 100 years or more. With the logical acumen of a 13-year-old, Seidman makes this very point, spending a large portion of his allotted space in the Grey Lady chronicling federal usurpation of power. This constitutional law professor from Georgetown University winds up his dissertation on constitutional infidelity with this brilliant observation.

In the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

Huh?

So let me follow the Seidman logic trail here. We’re teetering on the edge of fiscal chaos. The American system is broken. And it’s all because of our obedience to the Constitution. But nobody really takes the Constitution seriously. Really, they never have. That led us to where we are today: prosperous, without a hint of chaos or totalitarianism. But the system is broken. And we need to ignore the evil Constitution to get things back on the right track.

Wow.

Did this maven of dime store academia get his constitutional law degree out of a Cracker Jack Box?

The American Constitution divides governmental power between the federal government and several state governments. In the event of a conflict between federal law and state law, the Supremacy Clause of the Constitution (Article VI, Clause 2) makes it clear that state policies are subordinate to federal policies. There are, however, important limitations to the doctrine of federal supremacy.

First, there must be a valid constitutional basis for the federal policy in question. The powers of the federal government are limited and enumerated, and the president and Congress must always respect the boundary lines that the Constitution created.

Second, even in the areas where federal authorities may enact law, they may not use the states as instruments of federal governance. This anticommandeering limitation upon federal power is often overlooked, but the Supreme Court will enforce that principle in appropriate cases.

Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states’ prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been—and cannot be—preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.

In a statement announcing the impending introduction of the bill, the Nevada state coordinator for PANDA, Christopher Corbett, said,

I appreciate the community support backing up our efforts and the courage of those members of our governing bodies who are willing to actively protect the constitutional rights of their constituents. We need to restore the Constitutionally protected right to due process for every American.

Any day now, President Obama is expected to sign into law the 2013 version of the NDAA. The president signed the 2012 bill into law on December 31, 2011.

The NDAA contains several unconstitutional provisions that are opposed by a broad spectrum of political action groups.

For example, Sections 1021 and 1022 of the 2012 act declare the United States to be a battlefield in the “War on Terror” and authorize the president of the United States to deploy the armed forces to arrest and indefinitely detain any American he suspects of supporting al-Qaeda, the Taliban, or “associated forces.”

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Freedom was illegal in the Colonies in 1776 and Freedom is still illegal in America today. Those that signed the Declaration of Independence knew that a tyrannical government would never relinquish its power without resistance.

Governments are supposed to protect the rights of the people, but if they are not held in check, they will begin to abuse the people that they were created to protect. Rather than protecting the people, governments tend to protect the ruling class and enslave everyone else. This scheme will work as long as the people cling to the illusion that they are free.

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A few days ago, I made the mordant observation that the wake of the Newtown elementary school massacre would usher in “a brief period in which conservatives rue legislative panics in pursuit of perfect safety,” but come the next terrorist attack, everyone would switch sides.

Apparently, I spoke too soon. In an extraordinary statement to the press Friday, Wayne LaPierre, the head of the National Rifle Association, breathlessly demanded that we ACT NOW: “Before Congress reconvenes, before we engage in any lengthy debate over legislation, regulation or anything else, as soon as our kids return to school after the holiday break, we need to have every single school in America immediately deploy a protection program proven to work — and by that I mean armed security.” (Transcript here .pdf).

If the phrase “our kids” sticks in your craw, if you tend to think the claim that a policy is “for the children” signals a lousy argument and that promiscuous italicization overeggs the pudding, LaPierre’s speech won’t give you much cause to reconsider.

LaPierre begins by reeling off a list of the various places in American life where you can find armed guards: “American airports, office buildings, power plants, courthouses — even sports stadiums—are all protected by armed security,” LaPierre marveled; Congress has the Capitol Police, the President his Secret Service:

Yet when it comes to the most beloved, innocent and vulnerable members of the American family—our children—we as a society leave them utterly defenseless, and the monsters and predators of this world know it and exploit it. That must change now!

The truth is that our society is populated by an unknown number of genuine monsters—people so deranged, so evil, so possessed by voices and driven by demons that no sane person can possibly ever comprehend them. They walk among us every day. And does anybody really believe that the next Adam Lanza isn’t planning his attack on a school he’s already identified at this very moment?

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If ever one needed a cogent example of why relying on the federal government to comply with the constitution and protect the liberties of the people is hopeless, the senate just gave one. Robert Wenzel reports over at his EconomicPolicyJournal that in a 79 to 12 vote, the senate rejected an amendment to the Foreign…

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“The radical change in the relationship of the federal government to individual Americans was ratcheted up greatly in the Progressive Era,” argues Judge Andrew Napolitano in his new book, Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.

The first decades of the 20th century saw an assault on individual liberties that was both unconstitutional and unprecedented in American history. From crackdowns on freedom of speech to the seizures of vast swaths of land, Judge Napolitano shows how the policies of two presidents from opposing parties laid the groundwork for a century of ever-expanding federal power.

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Term limits are one of most popular political issues of the day. Most think of achieving this with a Constitutional Amendment, but there is another way: with nullification.

Before 1995, states were legislating term limits. Then in Inc. v. Thornton, 514 U.S. 779,(1995) in a 5 to 4 split decision, the Supreme Court ruled term limits unconstitutional. Their reasoning was that since the U.S. Constitution imposed some qualifications on Congress people, such as age restrictions and citizen requirements. The states could not legislate additional requirements.

In a well reasoned and clear statement for federalism, Clarence Thomas dissented with, “It is ironic that the Court bases today’s decision on the right of the people to ‘choose whom they please to govern them’.” Under our Constitution, there is only one State whose people have the right to ‘choose whom they please’ to represent Arkansas in Congress… Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.”

Justice Thomas is correct. There is no real Constitutional basis for this split Supreme Court ruling. It is the ruling on the whims and political view of five lawyers. At the end of this Blog are states that still have federal term limits in their laws and/or constitution. As best I can determine, these states still have these statutes on the record. If the governor or Secretary of State deems that in Inc. v. Thornton, the U.S Supreme Court does not have the authority to make their ruling, then they could prevent these multi-term federal politicians from appearing on the ballot. A grass roots effort in these states might persuade one of them to do this.

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The South Carolina legislature will consider a bill that would nullify a considerable amount of assumed federal power over firearms – the Firearms Freedom Act.

Senate Bill 85 (SB85) states that, “A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in South Carolina and that remains within the borders of South Carolina is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.”

The bill was filed by Sen. Lee Bright (R-Spartanburg) on Dec. 13

The bill rests on the foundation of the Tenth Amendment, correctly asserting that powers not delegated are retained.